Citation Nr: 0417040
Decision Date: 06/28/04 Archive Date: 07/13/04
DOCKET NO. 03-24 389 ) DATE
)
)
On appeal from the
Department of Veterans Affairs Regional Office in Boise,
Idaho
THE ISSUES
1. Entitlement to an increased evaluation for degenerative
disc disease, cervical spine, currently evaluated as 40
percent disabling.
2. Entitlement to an increased evaluation for degenerative
disc disease, lumbar spine, currently evaluated as 10 percent
disabling.
3. Entitlement to an increased evaluation for arthritis,
right great toe, currently evaluated as 10 percent disabling.
4. Entitlement to service connection for post-traumatic
stress disorder.
REPRESENTATION
Appellant represented by: The American Legion
ATTORNEY FOR THE BOARD
T. Francesca Craft, Associate Counsel
INTRODUCTION
The veteran served on active duty from January 1951 to
December 1954, and from February 1955 to August 1973, when he
retired.
This matter comes before the Board of Veterans' Appeals
(Board) on appeal from a July 2002 rating decision by the
Department of Veterans Affairs (VA) Regional Office (RO) in
Boise, Idaho.
As discussed more fully below, the issues of entitlement to
an increased evaluation for degenerative disc disease of the
cervical spine, and an increased evaluation for degenerative
disc disease of the lumbar spine, are being REMANDED to the
RO via the Appeals Management Center (AMC), in Washington,
DC. VA will provide notification if further action is
required on the part of the appellant.
FINDINGS OF FACT
1. The appellant has been adequately notified of all
pertinent laws and regulations and of the evidence necessary
to establish her claim; all reasonable development necessary
for the disposition of the instant case has been completed.
2. The veteran's arthritis, right great toe, is manifested
by symptoms of mild intermittent pain and moderate limitation
of motion productive of moderate impairment; the current
medical evidence indicates no subjective complaints of
functional impairment, and objective findings do not
demonstrate functional impairment or marked interference with
employment.
3. Post-traumatic stress disorder was not shown in service,
and the evidence received in support of the claim for service
connection for PTSD does not establish a current diagnosis of
PTSD.
CONCLUSIONS OF LAW
1. The schedular criteria for an evaluation in excess of 10
percent for arthritis, right great toe, have not been met.
38 U.S.C.A. §§ 1155, 5107 (West 2002); 38 C.F.R. §§ 3.159,
3.321, 4.1-4.3, 4.6, 4.40, 4.45, 4.71a, Diagnostic Code 5284
(2003).
2. Post-traumatic stress disorder was not incurred in or
aggravated by active service. 38 U.S.C.A. §§ 1110, 1131
(West 2002); 38 C.F.R. §§ 3.159, 3.303, 3.304 (2003).
REASONS AND BASES FOR FINDINGS AND CONCLUSIONS
I. Veterans Claims Assistance Act of 2000
The Veterans Claims Assistance Act of 2000 (VCAA) enacted
substantial additions and revisions to the law governing VA's
duty to assist claimants in the development of their claims.
Pub. L. No. 106-475, 114 Stat. 2096 (2000), now codified at
38 U.S.C.A. §§ 5102, 5103, 5103A, 5107 (West 2003). The VCAA
mandates that VA make reasonable efforts to assist a claimant
in obtaining evidence necessary to substantiate a claim for a
benefit, but does not require VA to provide assistance if no
reasonable possibility exists that such assistance would aid
in substantiating the claim. In addition, VA has published
regulations to implement many of the provisions of the VCAA.
See 66 Fed. Reg. 45,620 (Aug. 29, 2001), now codified at 38
C.F.R. §§ 3.102, 3.156(a), 3.159, and 3.326(a) (2003).
The Board has conducted a detailed review of the claims
folder and finds that the RO has fulfilled or surpassed the
requirements of the VCAA in this matter. The Board finds
that numerous documents provided to the veteran, including
the July 2002 rating decision, the August 2003 Statement of
the Case (SOC), and the October 2003 Supplemental SOC, have
satisfied the requirement at § 5103A of the VCAA in that they
clearly notified him and his representative of the evidence
necessary to substantiate his claim.
By letters dated in March 2002 and July 2003, the RO notified
the veteran of the VCAA and informed him of how
responsibilities in developing the record, as between the
claimant and VA, are divided in accordance with the VCAA.
See Quartuccio v. Principi, 16 Vet. App. 183 (2002). The
July 2003 letter requested that the veteran submit additional
information or evidence within 30 days of each letter, but
further advised him that he had an additional year in which
to send what was needed.
The United States Court of Appeals for Veteran Claims (CAVC)
held, in Pelegrini v. Principi, 17 Vet. App. 412 (2004), that
a VCAA notice, as required by 38 U.S.C. § 5103(a), must be
provided to a claimant before the initial unfavorable agency
of original jurisdiction (AOJ) decision on a claim for VA
benefits. The RO met the requirement herein, as the
development letter was forwarded in March 2002 and the
initial adjudication occurred months afterward, in July 2002.
The Court's decision in Pelegrini held, in part, that a VCAA
notice consistent with 38 U.S.C. § 5103(a) and 38 C.F.R.
§ 3.159(b) must: (1) inform the claimant about the
information and evidence not of record that is necessary to
substantiate the claim; (2) inform the claimant about the
information and evidence that VA will seek to provide; (3)
inform the claimant about the information and evidence the
claimant is expected to provide; and (4) request or tell the
claimant to provide any evidence in the claimant's possession
that pertains to the claim, or something to the effect that
the claimant should "give us everything you've got
pertaining to your claim(s)." Regarding the first
requirement, there was no information or evidence identified
by the veteran that was not of record. The letter informed
the veteran that VA would make reasonable efforts to obtain
certain types of records and would continue to seek Federal
agency records unless it is determined that additional
efforts would be futile. As stated above, the letter also
informed the veteran of what he was expected to provide.
As to the last item listed in Pelegrini, the letter did not
advise the veteran to send in everything he had pertaining to
his claim. However, this advisement is not necessarily a
"requirement." A precedential opinion of the VA General
Counsel, VAOPGCPREC 1-2004 (Feb. 24, 2004) appears to hold
that the Court's finding in Pelegrini, that a request that a
claimant provide VA with any evidence in his or her
possession that pertains to the claim is an explicit
requirement of 38 U.S.C. § 3.159(b) and an implicit
requirement of section 5103(a), is non-binding obiter dictum.
"Obiter dictum" (often abbreviated as "dictum") is "[a]
judicial comment made during the course of delivering a
judicial opinion . . . that is unnecessary to the decision in
the case and therefore not precedential." Black's Law
Dictionary 1100 (7th ed. 1999). Precedent opinions of the
chief legal officer of the Department, and regulations of the
Department, are binding on the Board. 38 U.S.C.A. § 7104(c)
(West 2002).
There is no indication of outstanding Federal Government
records or other records that have been identified by the
claimant. The RO has provided the veteran with a thorough VA
examination for service-connected arthritis of his right
great toe. The Board has considered whether an examination
was necessary to resolve the veteran's claim for service
connection for PTSD. In this regard, we conclude that there
was no competent medical or lay evidence to demonstrate a
current diagnosed disability or persistent or recurrent
symptoms of disability. The Board has considered the
veteran's claim of recurring nightmares, and his spouse's lay
statement, but without any contemporaneous treatment records,
and we find those statements, given decades after the alleged
events, and solely in the context of advancing a claim for
compensation, to lack probative value. The Board further
notes in this regard the lack of any abnormal psychiatric
diagnosis upon retirement. Based upon the above analysis,
there is no indication in this case that any further
notification or assistance would produce evidence that would
change the Board's decision and, therefore, any error for
noncompliance with the notice provisions of the VCAA is
harmless. In this regard, while perfection is an aspiration,
the failure to achieve it in the administrative process, as
elsewhere in life, does not, absent injury, require a repeat
performance. Miles v. M/V Mississippi Queen, 753 F.2d 1349,
1352 (5th Cir. 1985).
To the extent that VA in any way may have failed to fulfill
any duty to notify and assist the appellant, the Board finds
any such error to be harmless. See Conway v. Principi, 353
F.3d 1359 (Fed. Cir. 2004). Of course, an error is not
harmless when it "reasonably affected the outcome of the
case." ATD Corp. v. Lydall, Inc., 159 F.3d 534, 549 (Fed.
Cir. 1998). In addition, as the veteran has been provided
with the opportunity to present evidence and arguments on his
behalf, and has availed himself of those opportunities, final
appellate review is appropriate at this time. Bernard v.
Brown, 4 Vet. App. 384 (1993).
II. Increased Evaluation for Arthritis, Right Great Toe
Disability evaluations are determined by comparing a
veteran's present symptomatology with criteria set forth in
the VA's Schedule for Rating Disabilities, which is based
upon average impairment in earning capacity. 38 U.S.C.A. §
1155 (West 2002); 38 C.F.R. Part 4 (2003).
When a question arises as to which of two ratings apply under
a particular diagnostic code, the higher evaluation is
assigned if the disability more closely approximates the
criteria for the higher rating; otherwise, the lower rating
is assigned. 38 C.F.R. § 4.7. After careful consideration
of the evidence, any reasonable doubt remaining is resolved
in favor of the veteran. 38 C.F.R. § 4.3.
The veteran's entire history is reviewed when making
disability evaluations. See generally 38 C.F.R. § 4.1;
Schafrath v. Derwinski, 1 Vet. App. 589 (1995). Where
service connection already has been established and an
increase in the disability rating is at issue, it is the
present level of disability that is of primary concern. See
Francisco v. Brown, 7 Vet. App. 55, 58 (1994).
Disability of the musculoskeletal system is primarily the
inability, due to damage or infection in the parts of the
system, to perform the normal working movements of the body
with normal excursion, strength, speed, coordination, and
endurance. It is essential that the examination on which
ratings are based adequately portray the anatomical damage,
and the functional loss, with respect to all these elements.
The functional loss may be due to absence of part, or all, of
the necessary bones, joints and muscles, or associated
structures, or to deformity, adhesions, defective
innervation, or other pathology, or it may be due to pain,
supported by adequate pathology and evidenced by visible
behavior of the claimant undertaking the motion. Weakness is
as important as limitation of motion, and a part, which
becomes painful on use must be regarded as seriously
disabled. 38 C.F.R. §§ 4.10, 4.40, 4.45.
The CAVC has held that VA must analyze the evidence of pain,
weakened movement, excess fatigability, or incoordination and
determine the level of associated functional loss in light of
38 C.F.R. § 4.40, which requires VA to regard as "seriously
disabled" any part of the musculoskeletal system that
becomes painful on use. DeLuca v. Brown, 8 Vet. App. 202
(1995). The provisions of 38 C.F.R. § 4.14 (avoidance of
pyramiding) did not forbid consideration of a higher rating
based on greater limitation of motion due to pain on use,
including during flare-ups.
The Board notes that the guidance provided by CAVC in DeLuca
must be followed in adjudicating claims where a rating under
the diagnostic codes governing limitation of motion are to be
considered.
The intent of the Rating Schedule is to recognize painful
motion with joint or periarticular pathology as productive of
disability. It is the intention to recognize actually
painful, unstable, or malaligned joints, due to healed
injury, as entitled to at least the minimum compensable
rating for the joint. The joints should be tested for pain
on both active and passive motion, in weight bearing and
nonweight-bearing and, if possible, with the range of the
opposite undamaged joint. 38 C.F.R. § 4.59.
The veteran's service connected arthritis of the right great
toe is currently evaluated at 10 percent under Diagnostic
Code (DC) 5284 (Foot injuries, other). Under that code,
moderate residuals of a foot injury warrant a 10 percent
evaluation; moderately severe residuals warrant a 20 percent
evaluation; and severe residuals warrant a 30 percent
evaluation. With actual loss of use of the foot, it will be
rated at 40 percent. Id. at Note. 38 C.F.R. § 4.71a, DC
5284 (2003).
The words "moderate," "moderately severe," and "severe"
are not defined in Diagnostic Code 5284. Rather than
applying a mechanical formula, the Board must evaluate all of
the evidence to the end that its decision is "equitable and
just." 38 C.F.R. § 4.6.
It should also be noted that use of terminology such as
"moderate" by VA examiners or other physicians, although an
element of evidence to be considered by the Board, is not
dispositive of an issue. All evidence must be evaluated in
arriving at a decision regarding an increased rating. 38
C.F.R. §§ 4.2, 4.6.
38 C.F.R. § 3.321(b)(1) provides that, in exceptional
circumstances, where the schedular evaluations are found to
be inadequate, the veteran may be awarded a rating higher
than that encompassed by the schedular criteria, as shown by
evidence showing that the disability at issue causes marked
interference with employment, or has in the past or continues
to require frequent periods of hospitalization rendering
impractical the use of the regular schedular standards.
38 C.F.R. § 3.321.
VA outpatient records from VA Medical Center (VAMC) in Boise,
dated between April 1998 to August 2001, indicate the veteran
reported his "left" great toe was relieved with a magnetic
insole in his shoe. In August 1999, he reported his toe was
relieved with Excedrin. No other references to the toe are
shown.
The report of the VA compensation and pension
(C&P)examination in July 2002 indicates the examiner reviewed
the claims file. His review of veteran's records revealed
the veteran underwent a Keller bunionectomy and silastic
implant for a right hallux valgus in November 1985. Moderate
improvements were shown since the operation, but the veteran
continued to report mild intermittent throbbing of the right
metatarsophalangeal (MP) joint. On examination, there was
virtually no extension of the MP on the right compared to the
left. The examiner also noted limited flexion of the joint.
The angle of the MP joint was 18 degrees on the right and 12
degrees on the left. X-rays of the toes were interpreted to
show a prosthetic device present at the first phalangeal
joint, without detectable complication. The examiner
concluded there was a Keller bunionectomy on the right with
moderate improvement, with residual mild symptoms.
Review of the record indicates the veteran has no greater
than a moderate impairment as a result of the arthritis in
his right great toe. VA outpatient records show no
complaints of pain or other disability of a moderately severe
or a severe nature. The last mention of his toe in treatment
records indicates the veteran needed only over-the-counter
medication and a magnetic insole to relieve symptoms of pain.
Outpatient records do not substantiate any functional
impairment. The veteran does have some limitation of motion
in his right great toe, as demonstrated at the last C&P
examination; however, his only complaint was intermittent and
mild throbbing.
The medical evidence does not show that the veteran's right
great toe arthritis has resulted in such disabling pain as to
be productive of functional impairment which warrants
consideration of assignment of a rating in excess of 10
percent under the criteria of 38 C.F.R. §§ 4.40, 4.45, and
DeLuca, 8 Vet. App. at 206-207. As noted above, the term
"moderately severe" is not defined by regulation, but when
compared with other comparable ratings for the feet, this
term must be understood to require greater difficulties than
those currently experienced by the veteran. As suggested by
the reference to other diagnostic codes, the veteran's
difficulties are not tantamount to more than moderate
impairment, even when pain is considered. See 38 C.F.R. §§
4.40, 4.45, 4.59 (2003); Johnson v. Brown, 9 Vet. App. 7, 11
(1996); DeLuca, 8 Vet. App. at 206-207. Significantly, the
veteran had pain-free motion on VA examination, and service-
connected disability was essentially asymptomatic. Even with
hallux valgus that has required resection of the metatarsal
heads or hallux valgus that is so severe that it equates to
amputation, the highest rating assignable would be 10 percent
under 38 C.F.R. § 4.71a, DC 5280. As already noted, the
veteran's disability is not comparable to such problems.
The Board has also considered the provisions of 38 C.F.R.
§ 3.321(b)(1), which state that when the disability picture
is so exceptional or unusual that the normal provisions of
the Rating Schedule would not adequately compensate the
veteran for his service-connected disabilities, an
extraschedular evaluation will be assigned. If the question
of an extraschedular rating is raised by the record or by the
veteran before the Board, the correct course of action is for
the Board to raise the issue and remand the matter if
warranted for a decision in the first instance by the RO,
which has the delegated authority to assign such a rating in
the first instance, pursuant to 38 C.F.R. § 3.321. See
Bagwell v. Brown, 9 Vet. App. 157, 158 (1996); Floyd v.
Brown, 9 Vet. App. 88, 94 (1996). In this regard, the Board
notes that neither frequent hospitalization nor marked
interference with employment due to the veteran's service-
connected varicocele is demonstrated, nor is there any other
evidence that this condition involves such disability that an
extraschedular rating would be warranted under the provisions
of 38 C.F.R. § 3.321(b)(1). The Board therefore finds that
further consideration or referral of this matter under the
provisions of 38 C.F.R. § 3.321 is not necessary or
appropriate.
Consequently, the Board finds an evaluation in excess of 10
percent for arthritis, right great toe, is not warranted.
III. Service Connection for PTSD
Service connection may be established for a disability
resulting from disease or injury incurred in or aggravated by
active service. 38 U.S.C.A. §§ 1110, 1131 (West 2002). To
demonstrate a chronic disease in service, a combination of
manifestations must be shown that is sufficient to identify
the disease entity and there must be sufficient observation
to establish chronicity at the time. 38 C.F.R. § 3.303(b)
(2003). If chronicity in service is not established, a
showing of continuity of symptoms after discharge is required
to support the claim. Id. Service connection may be granted
for any disease diagnosed after discharge, when all of the
evidence establishes that the disease was incurred in
service. 38 C.F.R. § 3.303(d).
Service connection for PTSD requires medical evidence
diagnosing the condition in accordance with 38 C.F.R. § 4.125
(which provides for the diagnosis of mental disorder in
accordance with the American Psychiatric Association's
Diagnostic and Statistical Manual of Mental Disorders at 32
(4th ed., 1994) (DSM-IV)); a link, established by medical
evidence, between current symptoms and an in-service
stressor; and credible supporting evidence that the claimed
in-service stressor occurred. If the evidence establishes
that the veteran engaged in combat with the enemy and the
claimed stressor is related to this combat, in the absence of
clear and convincing evidence to the contrary, and provided
that the claimed stressor is consistent with the
circumstances, conditions, or hardships of the veteran's
service, the veteran's lay testimony alone may establish the
occurrence of the claimed in-service stressor. 38 C.F.R. §
3.304(f) (2003); see Moreau v. Brown, 9 Vet. App. 389, 394
(1996).
When, after consideration of all evidence and material of
record in a case before the Department with respect to
benefits under laws administered by the Secretary, there is
an approximate balance of positive and negative evidence
regarding the merits of an issue material to the
determination of the matter, the benefit of the doubt in
resolving each such issue shall be given to the claimant.
38 U.S.C.A. § 5107(b) (West 2002); 38 C.F.R. § 3.102 (2003).
Service personnel records indicate the veteran served in the
Republic of Vietnam on temporary duty from June 1968 to
September 1968. Service medical records reflect the veteran
endorsed a medical history of frequent trouble sleeping and
frequent or terrifying nightmares at the time of his
retirement physical examination. The examining physician
indicated in his summary that the veteran had trouble getting
to sleep, it usually took 1-11/2 hours to get to sleep, and he
slept six to seven hours per night. The veteran's nightmares
referred to recurrent episodes of the veteran waking up and
"feeling that someone is in house and can't get back to
sleep." The veteran reported that this occurred once a
week. The examiner provided no diagnosis with regard to
these complaints.
Outpatient records from United States Air Force Hospital,
Mountain Home Air Force Base, dated between October 1973 and
July 2002 are negative for complaints of nightmares.
The veteran underwent numerous VA C&P examinations, for the
evaluation of his service-connected disabilities. These
examinations occurred in October 1973, May 1976, February
1977, May 1986, April 1993, and July 2002. The examination
reports are negative for any complaint of nightmares.
The veteran's stressor statement, dated in July 2003,
describes him being awakened from his sleep approximately two
or three o'clock in the morning when his fan was knocked onto
his bed. He said he jumped out of his bed with a knife,
which he slept with, and noticed a person dressed in dark
clothing. As he rose from his bed, the person ran out of the
barracks. The veteran followed him or her, but lost sight of
the person. The veteran states that he reported the incident
to his first sergeant the next day. He said the incident
occurred at Cam Ranh Bay, in Vietnam. He also stated that on
the first or second night after he returned to his permanent
station in Okinawa, he "almost took my son's head off" when
he came running into his bedroom. The veteran remembers
"taking a swing" at his son, but missing him. He reports
that after he left Vietnam, he started having nightmares
about someone being in his house and his bedroom, sometimes
at the foot of his bed. He continues to have the nightmare
once or twice a month. The veteran disclosed that he never
has complained of, or seen anyone concerning the stressor
incident, except for when he mentioned it during an Agent
Orange examination in 2002.
In a lay statement dated in July 2003, the veteran's spouse
corroborated the incident in Okinawa involving their son and
the veteran having "a heck of a time sleeping" after he
returned from Vietnam. She also stated the veteran had a lot
of thrashing of his legs and feet while he slept. She said
these problems continue to the present.
It is now well settled that in order to be considered for
service connection, a claimant must first have a disability.
See Gilpin v. Brown, 155 F.3d 1353 (Fed. Cir. 1998) (Service
connection may not be granted unless a current disability
exists); Rabideau v. Derwinski, 2 Vet. App. 141, 143 (1992).
Service medical records do show complaint of nightmares at
the veteran's separation, but the psychiatric portion of the
clinical evaluation was normal. Treatment records are
completely devoid of any complaints or treatment for
nightmares. In this regard, the Board notes that treatment
records indicate the veteran complained in March 1975 and
several times between January 1999 and August 2001 that his
right arm ached and went to sleep, and awakened him from
sleep. Records also reflect in January and February 1983,
the veteran complained of being awakened three times a week.
The veteran's spouse described sputtering, and stated the
veteran stopped breathing for a "long time." Records show
that in July 2002 the veteran also complained of trouble
sleeping due to breathing problems. The absence of any
mention of nightmares in over 30 years casts doubt on the
veteran's present claim, especially in light of all the other
complaints in regard to his sleeping habits.
Review of the veteran's enlisted performance reports also
fail to indicate any negative effects on the veteran's
performance, contemporaneous with or shortly after when the
stressor event allegedly occurred. Specifically, during the
reporting period from June 1968 to March 1969, the veteran
received straight nines in all personal qualities, i. e., a
perfect evaluation. Consequently, there is no objective
evidence to support the veteran's claim for service
connection for PTSD. The only evidence is the lay statements
of the veteran and his spouse, which are not given
contemporaneously with the events or in the context of
treatment, but rather over 30 years after the alleged
stressor event and in the context of submitting a claim for
compensation.
The Board has no reason to doubt the sincerity of the
statements proffered by the veteran and his wife in this
claim. However, they are not professionally qualified to
suggest a diagnosis of PTSD based upon their descriptions of
nightmares, difficulty sleeping, breathing problems, etc.
Resolving issues that involve medical knowledge, such as
diagnosis of disability and determination of medical
etiology, in the context of service connection claims,
requires professional evidence. See Espiritu v. Derwinski, 2
Vet. App. 492, 495 (1992). See also Routen v. Brown, 10 Vet.
App. 183, 186 (1997) ("a layperson is generally not capable
of opining on matters requiring medical knowledge"), aff'd
sub nom. Routen v. West, 142 F.3d 1434 (Fed. Cir. 1998),
cert. denied, 119 S. Ct. 404 (1998). Consequently, the
veteran's subjective complaint of PTSD is insufficient to
establish a diagnosis.
In view of the foregoing, the Board finds the preponderance
of the evidence is against the claim for service connection
for PTSD.
ORDER
Entitlement to an increased evaluation for arthritis, right
great toe, is denied.
Entitlement to service connection for post-traumatic stress
disorder is denied.
REMAND
The veteran's service-connected degenerative disc disease of
the cervical spine is currently evaluated under 38 C.F.R.
§ 4.71a, Diagnostic Code 5293. His service-connected
degenerative disc disease of the lumbar spine is currently
evaluated under 38 C.F.R. § 4.71a, DC 5292. Revisions were
made to both these diagnostic codes, effective September 26,
2003, when VA promulgated new rating criteria for diseases
and injuries of the spine. Specifically, DC 5243
(intervertebral disc syndrome), Note 6, directs that
intervertebral syndrome is to be evaluated under the General
Rating Formula for Diseases and Injuries of the Spine or
under the formula for rating based on incapacitating
episodes, whichever method results in the higher evaluation
when all disabilities are combined under 38 C.F.R. § 4.25.
Diagnostic Code 5292 has not been renumbered, as the
revisions do not include a diagnostic code based exclusively
on limitation of motion of the lumbar spine; however, DC 5242
provides criteria for evaluating degenerative arthritis of
the spine. The General Rating Formula for Diseases and
Injuries of the Spine provides the criteria for degenerative
arthritis of the spine. Although the new criteria were
considered when the RO adjudicated his claim, they were not
considered when the veteran underwent his VA medical
examination in July 2002. Accordingly, additional
development is needed to preclude any prejudice against the
veteran's claim for an increased evaluation for degenerative
disc disease, cervical spine, and an increased evaluation for
degenerative disc disease, lumbar spine.
The appellant has the right to submit additional evidence and
argument on the matter or matters the Board has remanded to
the regional office. Kutscherousky v. West, 12 Vet. App. 369
(1999).
To ensure full compliance with due process requirements, the
case is REMANDED for the following action:
1. The RO should arrange for VA
orthopedic and neurological
examination(s) to determine the current
severity of the veteran's service-
connected degenerative disc disease of
his cervical spine and his lumbar spine.
All indicated studies should be
conducted, and all clinical findings
should be reported in detail. (a) The
examiner should describe the
manifestations of the veteran's
degenerative disc diseaseof the cervical
and lumbar spine in accordance with
pertinent former and revised criteria
for intervertebral disc syndrome (IVDS),
limitation of motion, lumbar spine, and
degenerative arthritis of the spine.
(b) The examiner should (i) render
findings as to whether, during
examination, there is mild, moderate,
severe, or pronounced IVDS, if any, and
(ii) specify the total duration of
incapacitating episodes, if any, over
the past 12 months (an "incapacitating
episode" being a period of acute signs
and symptoms due to IVDS that requires
bed rest prescribed by and treatment by
a physician). (c) The examiner should
also provide findings as to whether
there is objective evidence of pain on
motion, weakness, excess fatigability,
and/or incoordination associated with
the low back. (d) If pain on motion is
observed, the examiner should indicate
the point at which pain begins.
If the physician cannot answer any of
the above questions without resort to
speculation, he or she should so
indicate. A complete rationale for the
comments expressed should be provided.
The claims file, to include a copy of
this remand, should be made available to
the examiner, who should indicate in the
examination report whether the records
were reviewed.
The veteran is hereby advised that
failure to report for any scheduled
examination may have adverse
consequences to his claim.
Specifically, that failure to report
without good cause for an examination in
conjunction with a claim for an
increased rating will result in the
denial of the claim. 38 C.F.R. § 3.655.
2. Thereafter, the RO should again
review the record. If the benefits
sought on appeal remain denied, the
appellant and his representative should
be furnished a Supplemental Statement of
the Case, and given the opportunity to
respond thereto.
This claim must be afforded expeditious treatment by the RO.
The law requires that all claims that are remanded by the
Board of Veterans' Appeals or by the United States Court of
Appeals for Veterans Claims for additional development or
other appropriate action must be handled in an expeditious
manner. See The Veterans Benefits Act of 2003, Pub. L. No.
108-183, § 707(a), (b), 117 Stat. 2651 (2003) (to be codified
at 38 U.S.C. §§ 5109B, 7112).
________________________________
ANDREW J. MULLEN
Veterans Law Judge, Board of Veterans' Appeals
Department of Veterans Affairs
YOUR RIGHTS TO APPEAL OUR DECISION
The attached decision by the Board of Veterans' Appeals (BVA or Board) is
the final decision for all issues addressed in the "Order" section of the
decision. The Board may also choose to remand an issue or issues to the
local VA office for additional development. If the Board did this in your
case, then a "Remand" section follows the "Order." However, you cannot
appeal an issue remanded to the local VA office because a remand is not a
final decision. The advice below on how to appeal a claim applies only to
issues that were allowed, denied, or dismissed in the "Order."
If you are satisfied with the outcome of your appeal, you do not need to do
anything. We will return your file to your local VA office to implement
the BVA's decision. However, if you are not satisfied with the Board's
decision on any or all of the issues allowed, denied, or dismissed, you
have the following options, which are listed in no particular order of
importance:
? Appeal to the United States Court of Appeals for Veterans Claims
(Court)
? File with the Board a motion for reconsideration of this decision
? File with the Board a motion to vacate this decision
? File with the Board a motion for revision of this decision based on
clear and unmistakable error.
Although it would not affect this BVA decision, you may choose to also:
? Reopen your claim at the local VA office by submitting new and
material evidence.
There is no time limit for filing a motion for reconsideration, a motion to
vacate, or a motion for revision based on clear and unmistakable error with
the Board, or a claim to reopen at the local VA office. None of these
things is mutually exclusive - you can do all five things at the same time
if you wish. However, if you file a Notice of Appeal with the Court and a
motion with the Board at the same time, this may delay your case because of
jurisdictional conflicts. If you file a Notice of Appeal with the Court
before you file a motion with the BVA, the BVA will not be able to consider
your motion without the Court's permission.
How long do I have to start my appeal to the Court? You have 120 days from
the date this decision was mailed to you (as shown on the first page of
this decision) to file a Notice of Appeal with the United States Court of
Appeals for Veterans Claims. If you also want to file a motion for
reconsideration or a motion to vacate, you will still have time to appeal
to the Court. As long as you file your motion(s) with the Board within 120
days of the date this decision was mailed to you, you will then have
another 120 days from the date the BVA decides the motion for
reconsideration or the motion to vacate to appeal to the Court. You should
know that even if you have a representative, as discussed below, it is your
responsibility to make sure that your appeal to Court is filed on time.
How do I appeal to the United States Court of Appeals for Veterans Claims?
Send your Notice of Appeal to the Court at:
Clerk, U.S. Court of Appeals for Veterans Claims
625 Indiana Avenue, NW, Suite 900
Washington, DC 20004-2950
You can get information about the Notice of Appeal, the procedure for
filing a Notice of Appeal, the filing fee (or a motion to waive the filing
fee if payment would cause financial hardship), and other matters covered
by the Court's rules directly from the Court. You can also get this
information from the Court's web site on the Internet at
www.vetapp.uscourts.gov, and you can download forms directly from that
website. The Court's facsimile number is (202) 501-5848.
To ensure full protection of your right of appeal to the Court, you must
file your Notice of Appeal with the Court, not with the Board, or any other
VA office.
How do I file a motion for reconsideration? You can file a motion asking
the BVA to reconsider any part of this decision by writing a letter to the
BVA stating why you believe that the BVA committed an obvious error of fact
or law in this decision, or stating that new and material military service
records have been discovered that apply to your appeal. If the BVA has
decided more than one issue, be sure to tell us which issue(s) you want
reconsidered. Send your letter to:
Director, Management and Administration (014)
Board of Veterans' Appeals
810 Vermont Avenue, NW
Washington, DC 20420
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Remember, the Board places no time limit on filing a motion for
reconsideration, and you can do this at any time. However, if you also plan
to appeal this decision to the Court, you must file your motion within 120
days from the date of this decision.
How do I file a motion to vacate? You can file a motion asking the BVA to
vacate any part of this decision by writing a letter to the BVA stating why
you believe you were denied due process of law during your appeal. For
example, you were denied your right to representation through action or
inaction by VA personnel, you were not provided a Statement of the Case or
Supplemental Statement of the Case, or you did not get a personal hearing
that you requested. You can also file a motion to vacate any part of this
decision on the basis that the Board allowed benefits based on false or
fraudulent evidence. Send this motion to the address above for the
Director, Management and Administration, at the Board. Remember, the Board
places no time limit on filing a motion to vacate, and you can do this at
any time. However, if you also plan to appeal this decision to the Court,
you must file your motion within 120 days from the date of this decision.
How do I file a motion to revise the Board's decision on the basis of clear
and unmistakable error? You can file a motion asking that the Board revise
this decision if you believe that the decision is based on "clear and
unmistakable error" (CUE). Send this motion to the address above for the
Director, Management and Administration, at the Board. You should be
careful when preparing such a motion because it must meet specific
requirements, and the Board will not review a final decision on this basis
more than once. You should carefully review the Board's Rules of Practice
on CUE, 38 C.F.R. 20.1400 -- 20.1411, and seek help from a qualified
representative before filing such a motion. See discussion on
representation below. Remember, the Board places no time limit on filing a
CUE review motion, and you can do this at any time.
How do I reopen my claim? You can ask your local VA office to reopen your
claim by simply sending them a statement indicating that you want to reopen
your claim. However, to be successful in reopening your claim, you must
submit new and material evidence to that office. See 38 C.F.R. 3.156(a).
Can someone represent me in my appeal? Yes. You can always represent
yourself in any claim before VA, including the BVA, but you can also
appoint someone to represent you. An accredited representative of a
recognized service organization may represent you free of charge. VA
approves these organizations to help veterans, service members, and
dependents prepare their claims and present them to VA. An accredited
representative works for the service organization and knows how to prepare
and present claims. You can find a listing of these organizations on the
Internet at: www.va.gov/vso. You can also choose to be represented by a
private attorney or by an "agent." (An agent is a person who is not a
lawyer, but is specially accredited by VA.)
If you want someone to represent you before the Court, rather than before
VA, then you can get information on how to do so by writing directly to the
Court. Upon request, the Court will provide you with a state-by-state
listing of persons admitted to practice before the Court who have indicated
their availability to represent appellants. This information is also
provided on the Court's website at www.vetapp.uscourts.gov.
Do I have to pay an attorney or agent to represent me? Except for a claim
involving a home or small business VA loan under Chapter 37 of title 38,
United States Code, attorneys or agents cannot charge you a fee or accept
payment for services they provide before the date BVA makes a final
decision on your appeal. If you hire an attorney or accredited agent within
1 year of a final BVA decision, then the attorney or agent is allowed to
charge you a fee for representing you before VA in most situations. An
attorney can also charge you for representing you before the Court. VA
cannot pay fees of attorneys or agents.
Fee for VA home and small business loan cases: An attorney or agent may
charge you a reasonable fee for services involving a VA home loan or small
business loan. For more information, read section 5904, title 38, United
States Code.
In all cases, a copy of any fee agreement between you and an attorney or
accredited agent must be sent to:
Office of the Senior Deputy Vice Chairman (012)
Board of Veterans' Appeals
810 Vermont Avenue, NW
Washington, DC 20420
The Board may decide, on its own, to review a fee agreement for
reasonableness, or you or your attorney or agent can file a motion asking
the Board to do so. Send such a motion to the address above for the Office
of the Senior Deputy Vice Chairman at the Board.
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